Jammie Thomas takes the stand, admits to major misstep

Jammie Thomas-Rasset took the stand this afternoon and pleaded total innocence …

After the morning's excitement, Jammie Thomas-Rasset took the stand this afternoon during her retrial. She was clad in a black shirt and black pants, the sort of garb appropriate to a hanging. Her testimony wasn't quite a hanging, but it didn't go particularly well for her, either—recording industry lead counsel Tim Reynolds caught her in what appears to have been a fairly significant misstep just before he let her off the stand.

First came the geeks

But before Thomas-Rasset raised her right hand and swore to tell the truth, the whole truth, and nothing but the truth, the court heard from Ryyan Chang Maki, a Best Buy Geek Squad supervisor from the Duluth area. Maki struck a somewhat comic chord as he walked up to the witness box with his skinny black tie, Geek Squad pin, Geek Squad belt badge, and Geek Squad jacket, but his testimony was no joke.

Two weeks after MediaSentry noted the infringement of "tereastarr@KaZaA" (and notified the user via KaZaA instant message that he or she had been caught sharing files) back in February 2005, Thomas-Rasset hauled her Compaq Presario down to the local Best Buy. There was a problem with the hard drive, so Best Buy replaced it under warranty.

That might sound like no big deal until you realize that Thomas-Rasset later provided this new hard drive—and not the one in the machine during the alleged February infringement—to investigators and to her own expert witness. It becomes an even bigger deal when you realize that she swore under oath—twice—that she had replaced the hard drive in 2004 (a full year earlier) and that it had not been changed again since.

Defense lawyer Joe Sibley put the best face on the hard drive replacement, asking Maki to confirm that Best Buy would not have swapped out a hard drive under warranty without checking to see if it worked. Maki agreed that the hard drive had truly been dead when it came in; if Thomas was attempting to cover her tracks, she would have had to break the device herself.

Sibley was less successful when he went over a complete record of Thomas-Rasset's Best Buy purchases for early 2005. It showed many media purchases—every few weeks, Thomas-Rasset had purchased DVDs, video games, and soft drinks (seriously, there were lots of soft drinks on the list). Sibley pointed out what a good customer she was even during the period of her alleged infringement.

The subtext was clear: when someone is getting all their music for free, why would they keep going to Best Buy to purchase CDs?

Unfortunately for Thomas-Rasset, the list did not in fact show this. Between December 2004 and May 2005, your humble correspondent noted only one item on the list that appeared definitively to be a CD—and it was Guitar Hits of the 80s. If anything, the list looked like a buyer's log of someone who was in fact getting music for free but was still buying plenty of DVDs and video games.

An ex-expert

Next up was Eric Stanley, who had been hired by Thomas-Rasset before her first trial to examine the same hard drive that was turned over to recording industry investigators. Thomas-Rasset at first told Stanley that the drive had been replaced in 2004, well before the alleged infringement, so this evidence looked like it would be great for Thomas-Rasset... until recording industry lawyers deposed Stanley and Thomas-Rasset on the same day. At some point during that day, Stanley heard something that led him to examine the physical drive once more during a break. It was then he found the sticker with a manufacturing date—of early 2005.

Stanley realized he was looking at a drive that had likely not even been in the machine when the alleged infringement took place. (He was asked about but had not heard the Best Buy testimony, which would support the idea that the hard drive he examined did not find its way into Thomas-Rasset's machine until early March 2005 when the Best Buy Geek Squad did the drive replacement.)

Jammie speaks

Thomas-Rasset took the witness stand after this. She did not shrink before questioning, at several points telling Tim Reynolds that he was characterizing her earlier deposition remarks incorrectly. In every case, Reynolds opened up the deposition, read out the particular passage, and forced her to admit that yes, she had said those things already under oath.

Most of this sparring was insignificant, but crucial details did emerge. First, we learned that Thomas-Rasset had only the Compaq Presario, that she kept it her bedroom, and that her "tereastarr" Windows account was password protected. (She had another account for guests and for her children.) As for that "tereastarr" name, it has been her only online username for 16 years.

Thomas-Rasset even claimed to have never heard of KaZaA before this case began, despite the fact that the "tereastarr@KaZaA" account has clearly been linked to her cable modem and despite having written a paper on Napster in college—a paper in which she concluded that Napster's original incarnation was legal under US law.

After more than an hour of this, Reynolds pressed his advantage on the hard drive issue. He referred to Thomas-Rasset's two previous depositions, both made under oath, during which she had said that the hard drive replacement had taken place in 2004 and that the drive had not been swapped again since.

Reynolds finally came straight out and suggested that the hard drive that had been turned over to investigators was different from the one that had been in the machine during the alleged infringement.

"That's true," said Thomas-Rasset, and with that, her testimony was over.

The trial could wrap up as soon as tomorrow, said the lawyers for both sides, which means that Thomas-Rasset will likely be called by the defense and will hopefully try to fill in the gaps here. Why was her hard drive story so wrong? Why had the drive been swapped out in the first place? Was she trying to deceive the recording industry?

Why was Thomas-Rasset's password-protected computer running KaZaA in February 2005, and with the "tereastarr" name, if she had not set up the software? And since no one else had the password, and since her kids were young and had a computer account of their own anyway, who might possibly have used a machine in her bedroom to share thousands of songs without her knowledge?

But those are questions for tomorrow. After Thomas-Rasset makes her best case, expect the recording industry lawyers to really bore in on the inconsistencies in her testimony in a way they did not today.

The case against her certainly looks strong, but Thomas-Rasset remains defiant. When asked point-blank today if the KaZaA share folder seen by MediaSentry was hers, she said clearly, "It is not mine."

A matter of equity

Whatever the merits of the case, it was certainly pathetic to see this young woman's life dragged out and put on display in the harsh glare of a federal court. E-mail addresses, her phone number, a floor plan of her apartment, her Match.com account, her Best Buy purchase history, screenshots of her Windows PC—all of it displayed on flat-panel screens, blown up for and scrutinized by the jury—her ex-boyfriend on the witness stand, discussions about her education, career, and CD collection, experts sifting through her hard drive...

Did she do it? That's for the jury to decide. But the bigger question is whether the process itself—the threat of life-altering damage awards, the hundreds of thousands of dollars in legal fees, the time and exposure of a federal trial—is truly a proportional, equitable response to online copyright infringement?

Not even the judge who must preside over this case believes that the answer to that question is "yes." Writing an unusually pointed order granting Thomas-Rasset a new trial last year, Judge Michael Davis, Chief Justice of the Minnesota District Court, wrote these extraordinary words:

While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has far?reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs—the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent...

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer? to?peer network cases such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts... The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit...

Despite his opinion, Davis may well preside over another guilty verdict this week; if so, he won't be able to throw it out thanks to a "making available" jury instruction this time around—a fact that perhaps accounts for his perpetual grumpy frown during the trial.